Austral Monsoon Industries Pty Limited v Pittwater Council [2009] NSWCA 201

New South Wales Court of Appeal

CITATION: Austral Monsoon Industries Pty Limited v Pittwater Council [2009] NSWCA 201

HEARING DATE(S): On the papers

JUDGMENT DATE: 16 July 2009

JUDGMENT OF: Spigelman CJ at 1; McColl JA at 1; Handley AJA at 1

DECISION: Orders not varied.

CATCHWORDS: PROCEDURE – judgments and orders – amending orders – slip rule – costs below – order not sought – Uniform Civil Procedure Rules 2005 (NSW) r 36.17

LEGISLATION CITED: Uniform Civil Procedure Rules 2005 (NSW)

Austral Monsoon Industries Pty Limited (Appellant) PARTIES: Pittwater Council (First Respondent) Minister for Planning (Second Respondent)

FILE NUMBER(S): CA 40136/08

Wilshire Webb Staunton Beattie (Appellant) SOLICITORS: Mallesons Stephen Jaques (First Respondent) Minister for Planning (Second Respondent)

LOWER COURT JURISDICTION: Land & Environment Court

LOWER COURT FILE NUMBER(S): LEC 41079/07; LEC 10076/07

LOWER COURT JUDICIAL OFFICER: Lloyd J

LOWER COURT DATE OF DECISION: 22 January 2008; 28 April 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Pittwater Council v Minister for Planning [2008] NSWLEC 26; Pittwater Council v Minister for Planning (No 2) [2008] NSWLEC 153

- 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40136/08

SPIGELMAN CJ McCOLL JA HANDLEY AJA

Thursday 16 July 2009 Austral Monsoon Industries Pty Limited v Pittwater Council 1 THE COURT: On 18 June 2009 this Court delivered judgment in Austral Monsoon Industries Pty Ltd v Pittwater Council [2009] NSWCA 154. The Court allowed both the appeal of Austral Monsoon Industries Pty Ltd and the first cross-appeal of the Minister for Planning. 2 The Court varied orders made by the Land and Environment Court including an order that Austral Monsoon and the Minister pay the Council's costs. Relevantly it substituted the following order: "5 In place of Order 1 of the orders made on 5 May 2008 as to the cost of the proceedings below, order that the first respondent pay the appellant's costs of the proceeding below as agreed or assessed." 3 The Minister for Planning has approached the Court for a variation to this Order pursuant to the slip rule in r 36.17 of the Uniform Civil Procedure Rules 2005. She seeks an amendment so that Order 5 would read: "5 In place of Order 1 of the orders made on 5 May 2008 as to the costs of the proceedings below, order that the first respondent pay the appellant's and the second respondent's costs of the proceedings below as agreed or as assessed." 4 In her first cross-appeal the Minister did not seek any order with respect to costs of the proceedings below. She sought changes to the orders made by the Land and Environment Court, but did not seek any order varying the orders as to costs. The only costs order sought in the first cross-appeal was: "4 The first cross-respondent pay the first cross-appellant's costs of the appeal." 5 It is pertinent to set out the whole of the relief sought in the first cross-appeal. It was: "1 Cross-appeal allowed. 2 Paragraph 3 of the orders made on 28 April 2008 be set aside. 3 In place of paragraph 3 of the orders made on 28 April 2008 declarations that: (1) The opinion of the Minister as expressed in the 'Record of the Minister's opinion for the purposes of clause 6 of the State Environmental Planning Policy (State Significant Development) 2005', dated 3 May 2007 is valid in respect of the development proposed in development application no DA 144-6-2005-i as lodged with the Minister on 10 June 2005. (2) The Minister for Planning is the consent authority in respect of development application no DA 144-6-2005-i lodged with the Minister on 10 June 2005. (3) Development application no DA 144-6-2005-i for development in the form lodged with the Minister on 10 June 2005 remains before him for determination pursuant to s 80 of the Environmental Planning and Assessment Act 1979. 4 The first cross-respondent pay the first cross-appellant's costs of the appeal." 6 In written submissions in reply dated 13 February 2009 the Minister indicated that, at the hearing of the appeal, she would seek leave to amend the first cross-appeal to seek the following orders: "(a) Minister for Planning's First Cross-Appeal allowed. (b) Set aside the orders made by Lloyd J on 28 April 2008 in proceedings No 40136 of 2008 in the Land and Environment Court and in lieu thereof, order: a. Declare that the determination for the Minister for Planning made on 14 February 2006 in relation to Development Application No 104-6-2005 was void and of no effect. b. The Application Class Four filed in the Land and Environment Court on 26 October 2007 be otherwise dismissed. c. costs (c) Set aside the Orders made by Lloyd J on 28 April 2008 in proceedings No 10076 of 2007 in the Land and Environment Court; (d) Remit proceedings No 10076 of 2007 to the Land and Environment Court for determination according to law; (e) Pittwater Council's Notice of Contention dated 10 June 2008 be dismissed. (f) Pittwater Council be denied leave to file a Cross Appeal or that Cross Appeal be dismissed." 7 The costs order made below was made on 5 May 2008, consequential upon the judgment of Lloyd J of 28 April 2008. There is no express reference to that order in the orders sought to be substituted. However, that may be regarded as implicit in the subparagraph "c. costs". 8 The application for leave to amend envisaged by the written submissions was not pursued in this Court. No such leave has been granted. It is also noteworthy that the orders proposed to be made, if leave were granted, did not include an order for costs of the appeal. The Minister has the advantage of such an order by reason of the order sought in the original first cross-appeal. 9 In the circumstances it is not appropriate to vary the orders of the Court. **********